Tudor Creek Limited v Kenya Ports Authority

2. The application is supported by the affidavit of Jimmy Wafula Simiyu and premised on grounds that the taxing master gave an inordinately low figure as the instruction fees having erred in law and principle by applying schedule 11 of the advocates (Remuneration) order 2014 which is designed for ordinary tribunals and not the Land acquisition tribunal that handles way complex matters of compulsory acquisition as the Environment and Land Court and hence the schedule that should have been used is schedule 6A applicable to superior courts. 3. The application was canvassed by way of written submissions with the Applicant filing submissions dated 5th March 2026 while the Respondent filed submissions dated 26th March 2026. 4. The Applicant submitted on one substantial issue which is; Whether the taxing master erred in principle by applying Schedule 11 instead of Schedule 6A of the Advocates (Remuneration) Order in assessing instruction fees Counsel reiterated the averments in the supporting affidavit that the land acquisition tribunal was not an ordinary tribunal, but deals with matters that touch on infractions of fundamental rights and freedoms which is a preserve of the environment and Land court. That such matters are complex that require extensive research and also considering the value of the subject matter, the taxing master should have applied schedule 6A rather than schedule 11. Counsel indicated that where a taxing officer applies the wrong schedule or wrong 2 ELCLMISC E331 OF 2025

page 2 of 7

principle the court is entitled to set aside the taxation relying in the case of First American Bank of Kenya Ltd. Shah & 2 others. 5. The Respondent in rebuttal indicated that it was upon the Applicant to substantiate that the taxing master should have relied on paragraph 11 of the ARO. He further relied on Section 51D, which provides that, subject to paragraph 22, the remuneration applicable to proceedings before tribunals, other than those under Schedules 8 and 9, is that set out in Schedule 11, except where otherwise prescribed under the Act. 6. That the court is only mandated to interfere with the taxing master’s discretion unless it is shown that the taxing officer acted on wrong principles relying on the case of Ooko Vs National Irrigation Authority (Misc. Application E175 of 2024) [2024] KEELC 14084 (KLR), On the issue of the instruction fees being manifestly low, counsel submitted that the Applicant’s assertion of the matter being complex cannot be the legal ground as to the why the figure should be upscaled. That the Applicant should show that the taxing master took irrelevant factors into account, applied a wrong principle or reached an award so low as to be an injustice. Analysis and determination 7. Having considered the application and the submissions herein the only issues for determination is whether the court should interfere with the Taxing Master’s ruling delivered on the 21st October 2025. 3 ELCLMISC E331 OF 2025

page 3 of 7

It is trite that the court will only intervene in the outcome of a taxation where there is an error of principle. This is the position that was taken in the case of Republic Vs Ministry of Agriculture & 2 others Ex parte Muchiri W’njuguna & 6 Others [2006] eKLR where Ojwang J. (as he then was) expressed himself as follows: “The taxation of costs is not a mathematical exercise; it is entirely a matter of opinion based on experience. A Court will not, therefore, interfere with the award of a taxing officer, particularly where he is an officer of great experience, merely because it thinks the award somewhat too high or too low; it will only interfere if it thinks the award so high or so low as to amount to an injustice to one party or the other…. The court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an interference that it was based on an error of principle.” 15. In Machira & Co. Advocates Vs. Magugu [2002] 2 EA Ringera J (as he then was) held that: -“As I understand the practice relating to taxation of bills of costs, any complaint about any decision of the taxing officer whether it relates to a point of law taken with regard to taxation or to a grievance about the taxation of any item in the bill of costs is ventilated by way of a Reference to a judge in accordance with paragraph 11 of the Advocates Remuneration Order.” 4 ELCLMISC E331 OF 2025

page 4 of 7

8. In the present case, the advocate took issue with the taxing officer’s findings on taxation and argued that there was an error of principle in that the taxing master applied the wrong schedule of the Advocates remuneration order being schedule 11 instead of schedule 6A of the ARO. I note that the taxing master stated as follows in the impugned ruling: “The bill of costs has been taxed off as per schedule 11 of the advocates remuneration order which provided for costs of proceedings before tribunals other than those under schedule 8 and 9 of this order except where otherwise prescribed by the act setting up the tribunal. It is trite that the instruction fees are charged from the value of the subject matter. The subject matter herein as per the judgement of the court is Ksh 447,382,792.50. Interest is not part of the decretal amount for purposes of taxation and shall only be placed before the decree.” The advocates remuneration order is very clear on the schedule that is applicable to party to party costs filed in a tribunal, in this case being Schedule 11. The wording of this document is very specific as to the tribunals that are exempted from Schedule 11 being tribunals listed in Schedule 8 and 9 in this case tribunal under the Landlord and Tenant(shops, hotels and catering establishments) Act and Rent Restriction Act respectively. Had the drafters wanted the Land Acquisition Tribunal to be exempted from the governance of schedule 11, the same would have 5 ELCLMISC E331 OF 2025

page 5 of 7

been clearly captured in the ARO. Being as it is no such provision is there and therefore the proceedings under the Land Acquisition Tribunal are governed by schedule 11. 9. I therefore hold that the taxing master used the right schedule in coming up with her determination. I will then move on to determine whether the provisions of Schedule 11 were rightly captured. The said schedule reads; 11.(3) “When taxing the costs consideration shall be given by the taxing officer to either the value of the subject-matter or, where the value of the subject matter cannot be determined, to the following criteria. a) the nature and importance of the proceedings; b) the complexity of the matter and the difficulty or novelty of the question raised; c) the amount or value of the subject matter; d) the time expended by the advocate(s); e) The number and importance of the documents prepared or perused, without regard to length. 10. In this case the value of the subject matter was ascertained in the pleadings that is the judgement as Ksh. 447,382,792.50/= which the taxing master considered and further went to consider the workload including the expenses incurred in the drafting of documents and the attendances in court. The Taxing Master therefore was bounded by the provisions of Schedule 11 which he 6 ELCLMISC E331 OF 2025

page 6 of 7

applied appropriately. Accordingly, I find no reason to disturb the assessment by the Taxing Master Final disposition The upshot of the above is that I hold as below; i. The Chamber Summons dated 27th October 2025 lacks merit and is hereby dismissed. ii. The taxation by the Taxing Master delivered on 21st October 2025 is upheld. iii. The Respondent shall have the costs to the reference. It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 16th day of July 2026. MOHAMMED N. KULLOW JUDGE 7 ELCLMISC E331 OF 2025

page 7 of 7